Supreme Court dismisses judicial review application where Visitors correctly ruled no jurisdiction existed due to lack of Board decision.

THE SUPREME COURT

Fennelly J.

Macken J.

Finnegan J.

[S.C. No: 422/05]

BETWEEN

PATRICK KELLY

APPLICANT

AND

THE VISITORS OF THE COLLEGE OF THE HOLY AND UNDIVIDED TRINITY OF QUEEN ELIZABETH NEAR DUBLIN

RESPONDENTS

Judgment delivered the 14th day of December, 2007 by Fennelly J.

This is an application for leave to apply for judicial review of a decision of the Visitors to Trinity College. The application for leave was

dismissed in the High Court (Abbot J) and comes before this Court pursuant to Order 58, Rule 13 of the Rules of the Superior Courts.

The impugned decision was made by the Visitors on 9th November 2005. They ruled that they had no jurisdiction to consider a

complaint of bullying made by the applicant, a student, against a member of staff. The applicant complains principally of the

composition of the Visitors and alleges bias.

For ease of reference, I will describe the University as Trinity or the College.

The background to the application is complex and involves several procedural stages of the applicant’s complaints and a number of

elements of Trinity administration. The applicant has submitted an extremely long grounding affidavit, voluminous documentation and

no less than six sets of written submissions. He also presented oral submissions before the Court. Most of the background is not

directly relevant to the very specific grounds for judicial review placed before the Court by the applicant.

During the academic year 2002-2003, the applicant was a postgraduate student on the Masters in Social Work course at Trinity. Part

of his course involved placement on a Practice Project at the Risk Assessment and Consultation Service of the South Western Area

Health Board. There was deep seated and fundamental dispute between the applicant and his Practice Teacher, Ms Enda Fulham, who

terminated the applicant’s placement a month early.

The applicant submitted a Practice Project report in May 2003. He included it a detailed and very strongly worded complaint against

Ms Fulham, accusing her, inter alia, of subjecting him to “incessant abuse and criticism.” Ms Fulham wrote an Evaluation Report on

the applicant’s placement. She recommended the applicant for a grade of F2, which means “an absolute fail.”

The applicant sent responses to the Evaluation Report to the course director for the Masters in Social Work. The latter acknowledged

what she described as his complaint dated 21st June 2003 and said that the complaint would be investigated.

About this time, Trinity had adopted a “Policy and Procedures for dealing with Complaints of Bullying or Harassment including Sexual

Harassment.” This policy appears to apply to both students and employees at Trinity. The applicant’s complaint was investigated in

accordance with this procedure.

On 27th November 2003, Mr Michael Gleeson, Secretary to the Board of Trinity wrote to the applicant, enclosing a “copy of the report

of the investigation conducted by the Pro-Dean of Business, Economic and Social Studies, in accordance with the College’s policy on

“preventing Sexual Harassment and Bullying.”” The Report was by Professor J. A. Murray, Professor of Business Studies, who said that

he had been asked to “consider the complaint and to report to the College.” He named a number of people whom he had interviewed,

including Ms Fulham, but he said that the applicant had declined an invitation to meet with him to discuss the complaint. Professor

Murray reported that, in his opinion, the complaint was “without substance.” He was satisfied that neither harassment nor bullying

had occurred.

The applicant pursued the matter via the Anti-Bullying Unit of the Health and Safety Authority. According to the applicant a new and

upgraded Anti-Bullying Policy was adopted by Trinity. He spent months trying to get Trinity to reinvestigate his complaint. On 6th July

2004, he was informed by the Secretary that Professor Murray had reviewed the complaint in the light of the changes to the policy

and that his opinion would not have been different if the new policy had been in force.

On 5th October 2004, the Secretary informed the applicant that the College had “appointed Professor John McGilp, Professor of

Physics and formerly Bursar of the College, to re-consider [the complaint] in the context of the current guidelines, and to report to

the College on the matter.” Professor McGilp conducted an investigation, during which the applicant met him.

On 14th February 2005 the applicant received a letter from the Staff relations Officer at the College, informing him that Professor

McGilp had completed his report “in line with Section 7 of the College Policy and Procedures for dealing with complaints of

Harassment.” Professor McGilp reported:

“I find no corroborating evidence to support any of Mr Kelly’s allegations and I find that Mr Kelly’s complaint is unfounded.”

The applicant was invited to and did respond to Professor McGilp’s report. On 15th March 2005, he wrote to the Secretary asking

whether the Board of Trinity College had made a decision on the complaint. He continued:

“In default of a decision on the complaint or an explanation, I will notify the registrar of my intention to appeal to the

Visitor, Mr Justice McCracken, under Chapter III, Section 6 of the College Statutes.”

The Secretary responded that this was “not a matter for the Board,” which had “no role in relation to the investigations carried out in

accordance with the above [anti-bullying] policy.” The Board did not make any decision on the matter. As will be seen later, the

applicant has submitted that the Board should be deemed to have made a decision.

The concluding part of the Ant-Bullying Policy provided, following an investigation of a complaint:

“If it is found that the complaint is well founded the investigator may recommend counselling, monitoring or the convening

of a disciplinary hearing. This outcome should be conveyed personally, as well as in writing, to the individual concerned.

If a disciplinary hearing is recommended this will be conducted in line with the statutes and/or agreements pertinent to

the person involved. If either party is unhappy with the outcome of the investigation, the issue may be processed through

normal industrial relations mechanisms.”

Clearly, the investigator, Professor McGilp, had not recommended a disciplinary hearing. On the contrary, he had found that the

applicant’s complaint was unfounded. Thus, the only possibly applicable provision of the Policy was that permitting “the matter to be

processed through normal industrial mechanisms.” The interpretation of this provision is not before the Court on the present

application and the applicant has sought no relief by reference to it. It is better, therefore, to refrain from comment as to its effect.

As a matter of fact, the Secretary wrote, on 18th March 2005, drawing the above quoted provision to the attention of the applicant

and informing him that he might “process the issue through normal industrial relations mechanisms.” He continued:

“In this case, in accordance with the College Statutes, you may refer the matter to the Senior Dean.”

The applicant disagreed with the Secretary’s statement that his complaint was not a matter for the Board. He states that the Senior

Dean and the “Disciplinary Procedures governing Members of the Academic Staff” are not a “normal industrial relations mechanism.”

The applicant maintains that he had made no complaint against Ms Fulham pursuant to Schedule III to Chapter XII of the

Consolidated College Statutes (hereinafter “the Statutes”). His complaint, he says, was under the College’s upgraded policy on

bullying. These matters are not directly before the Court for decision. They are relevant as background to the circumstances in which

the Visitors came to make the impugned decision.

On 21st March 2005, the applicant wrote to the Registrar of the College informing him of his intention to appeal to the Visitors. In his

letter purporting to invoke the jurisdiction of the Visitors, he claimed that the Board had “defaulted” and notified the Registrar of his

“intention to appeal to the Visitors under Chapter III, Section 6 of the College Statutes.” As I have explained, however, the Board had

made no decision. Section 6 of Chapter III provides:

“If any member or members of staff or student or students of the College or University shall claim to have suffered or to

be liable to suffer an injustice in consequence of any decision or sentence of the Board, or shall claim that any decision of

the Board is inconsistent with the Statutes, such member or members of staff, student or students may within three

weeks of the date on which such decision or sentence has been publicly announced, or has been conveyed to the person

or persons concerned, inform the Registrar of an intention to appeal to the Visitors. If, within a period of a further two

weeks, the matter has not been settled to the satisfaction of all parties, the said member or members of staff, student or

students may, within a further period of one week, direct the appeal in writing to either of the Visitors, and the Visitors

shall consider the appeal as soon as may be consistent with justice. The Visitors may confirm the decision of the Board in

whole or in part, or amend it, or declare it null and void, and their decision shall be binding on all parties.” (emphasis

added)

I quote this provision in full, as it is the provision invoked by the applicant in bringing his complaint by way of appeal before the

Visitors.

In his grounding affidavit, the applicant claims that the above section 6 of Chapter III is a “normal industrial relations mechanism” of

the College. He relies extensively on its provisions.

The applicant engaged in voluminous correspondence with the College authorities concerning his complaint. By letter dated 18th July

2005, the Secretary informed him that Mr Justice McCracken had been in contact with him regarding the appeal and that he and the

Pro-Chancellor (Dr Sagarra), who was to act “due to the unavailability of the Chancellor,” would consider the position and advise

further.

On 31st July 2005, the applicant wrote to Mr Justice McCracken stating:

“Chapter III, Section 6 of the college Statutes applies where a student claims to have suffered injustice “in consequence

of a decision of the Board.” The Board were supposed to reach a decision on my bullying complaint, taking into account

my response to Professor McGilp’s report to the Board. The Board failed to make a decision: failing to make a decision

equates to a decision.” (emphasis added)

In the course of further exchanges views were expressed to the Visitors regarding their jurisdiction. The College submitted that:

• The Board played no role in the Anti-Bullying policy;

• It was not the function of the Board to make any decision on Professor McGilp’s report;

• The Board had not, in fact, made any decision;

• The Visitors could not be considered an industrial relations mechanism of the College;

• The Visitors should decline jurisdiction.

The applicant wrote three separate letters (among many others) to Mr Justice McCracken on 20th 21st and 23rd September

responding to the College’s challenge to the jurisdiction of the Visitors. In each letter, he relied, as he had in his letter of 31st July

2005, on Section 6 of Chapter III. Specifically, in the last of these letters, he said:

“The Visitors have jurisdiction in this case because I “claim to have suffered an injustice” as a consequence of a “decision

of the Board” (Chapter III, Section 6 of the College Statutes). The “claim” that the injustice is as a result of a decision of

the Board is what provides the Visitors with “jurisdiction in this case.”

On 9th November 2005, the Secretary conveyed to the applicant the decision of the Visitors. That decision referred to the applicant’s

assertion that the Visitors had jurisdiction based on Section 6 of Chapter III. They noted that Section 6 gave jurisdiction in the case

of “any decision or sentence of the board.” The Visitors ruled that section 6 by its terms could “only refer to a positive decision.”

They referred to Professor McGilp’s report stating that he had “clearly determined that the case was unfounded and the statutes

make no reference to any requirement of a decision by the Board in such a case.” Accordingly, the Visitors ruled that the applicant’s

complaint did not come within section 6 of Chapter III, concluding: “there is no jurisdiction for the Visitors to hear the complaint.”

The applicant applied in due time for leave to apply for judicial review of that decision. The reliefs sought are:

1. An order of certiorari quashing the decision of the respondent dated November 9, 2005 on the ground of automatic

disqualification of the primary Visitor.

2. Alternatively, an order of certiorari quashing the decision of the respondent dated November 9, 2005 on the ground of

objective bias.

3. A declaration by way of judicial review that as “the primary Visitor” the Chancellor at the College of the Holy and

Undivided Trinity of Queen Elizabeth near Dublin, referred to as the Chancellor of “the University of Dublin”, is a judge in

his or her own cause and is disqualified as a matter of law automatically.

4. A declaration by way of judicial review that acting as “the primary Visitor” a Pro-Chancellor at the College of the Holy

and Undivided Trinity of Queen Elizabeth near Dublin, referred to as a Pro-Chancellor of “the University of Dublin”, is a

judge in his or her own cause and is disqualified as a matter of law automatically.

5. A declaration by way of judicial review that, because the factual errors in the decision of the respondent dated

November 9, 2005 are such as to render the decision irrational, the respondent acted ultra vires.

6. A declaration by way of judicial review that the nominations process for the Visitor other than the primary Visitor does

not comply with the principles of natural and constitutional justice and violates the applicant’s constitutional right to

procedural fairness.

7. Damages.

8. Further and other relief.

These grounds can be divided into three headings:

a) Professor Sagarra, as pro-Chancellor was disqualified from sitting as one of the Visitors by reason of objective bias;

b) The nomination process for the appointment of the second visitor, Mr Justice McCracken, do not comply with principles

of natural and constitutional justice;

c) The decision was void by reason of the presence of factual errors: at the hearing, this became a matter of mistake as

to jurisdiction.

It is, of course, well established that the applicant will be entitled to obtain leave to apply for judicial review if he can show that he

has an arguable case. (G. V Director of Public Prosecutions [1994] 1 I.R. 374). I would add that, although the applicant was at pains

to establish that Trinity College and Dublin University constitute a single entity, and went to very considerable lengths and conducted

extensive legal and parliamentary researches, this is not an issue of concern at this point. I am prepared to presume that proposition

in favour of the applicant, for the purposes of the application

The Bias Claim

The target of the bias claim is the participation of Professor Sagarra as one of the Visitors. Again, the applicant was at great pains to

establish the primacy of the Pro-Chancellor in the event of dispute between the Visitors. The Court explained to the applicant at the

hearing that it was not necessary for him to show that any participant in the decision had superior power.

The applicant relies on the following facts with regard to Professor Sagarra. These are based on documents obtained by him under the

Freedom of Information Acts. Dr Sagarra was appointed “Chair of German” at Trinity College in 1975 and held that position until she

retired in 1998. She had also held the positions of Registrar, Senior Proctor, Junior Proctor and Dean of Visiting Students. It is not

alleged that she held any of these positions at any time relevant to the present proceedings.

Professor Sagarra became a Pro-Chancellor of the University on 9th November 1999. It was by virtue of holding that position that she

was eligible to be a Visitor. Section 1 of Chapter III of the Statutes provides that:

“The Visitors of the College and of the University shall be the Chancellor of the University (or, if he should for any reason

be unable to act, one of the Pro-Chancellors…………………., and one other person appointed by the Government from a

panel of two persons nominated by the Senate of the University. No person holding a salaried post in the College or

University shall be eligible for nomination…………………”

The applicant claimed, at the hearing, that, on her appointment as Pro-Chancellor, Professor Sagarra had sworn that she would

uphold the best interests of the University and that, by reason of her career and background, she would be naturally biassed in favour

of the College.

The applicant claims that, on these facts, Professor Sagarra was disqualified by reason of objective bias from being one of the

Visitors. He made extensive reference to authority, including the House of Lords decision in In re Pinochet [1999] 1 AC 119 and

Orange Communications Ltd. v. Director of Telecoms (No. 2) [2000] 4 I.R. 159]; Spin Communications Ltd v The Independent Radio

and Television Commission [2001] 4 I.R. 411; Locabail (U.K.) Ltd. v. Bayfield Properties Ltd [2000] 2 W.L.R. 870.

He relied on the test propounded by Keane C.J. in the Orange Communications case, at page 186 of the report, namely “that the

decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision

maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.”

Denham J expressed the matter in very similar terms in her judgment in Bula Ltd. v Tara Mines Limited and others [2000] 4 I.R. 412,

where, at page 441 of the report she said:

“……it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances

would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the

issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any

party. It is an objective test - it invokes the apprehension of the reasonable person.”

I do not think that the applicant has established even an arguable case that Professor Sagara’s participation in the decision as one of

the Visitors is infected or tainted by objective bias. Firstly, her period of employment by the University had ended on her retirement. I

do not accept that former employments or associations are sufficient, in the absence of other evidence, to disqualify a person from

participating in disciplinary or similar tribunals related to that former employment. Secondly, her position as Pro-Chancellor is an

honorific position, which casts no doubt on her ability to bring a fresh and independent mind to the matters confided to the Visitors.

Barron J in his judgment in Orange Communications, at page 228, cited with approval the following helpful passage from page 887/888

of the judgment of the Court of Appeal in England (delivered by Lord Bingham, Lord Woolf and Sir Richard Scott, V.C.) in Locabail

(U.K.) Ltd. v. Bayfield Properties Ltd, cited above:

It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger

of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot,

however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national

origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be

soundly based on the judge's social or educational or service or employment background or history, nor that of any

member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or

Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures,

speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for

or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local

Law Society or chambers………………..”

It would need a considerable and, in my view, unjustified step to disqualify a qualified person from performing the valuable service of

adjudicating on disputes merely because of past professional associations or social links or background. A vast number of

administrative and adjudicative bodies draw on a pool of persons qualified by their experience, including past and present professional

or career links, to bring balanced judgment and common sense to the resolution of disputes. This Court, in the case of Bula Ltd. v

Tara Mines Limited and others, cited above, rejected as unfounded a challenge to one of its own judgments which was founded on

the past professional associations of two of the judges, who had, when barristers, provided advice or legal representation to one or

other of the parties to the litigation.

I can see no basis for attributing bias to Professor Sagarra based on her cited career involvement with the College. In particular, I fail

to understand why her undoubted obligation and natural wish to vindicate the best interests of the College should render her more

likely to favour a member of staff over a student. I specifically reject the suggestion advanced by the applicant in his affidavit that

the Professor has an interest in the outcome of appeal to the Visitors. She has none whatever other than that of seeing that matters

are justly and correctly decided.

Appointment of second visitor

It is difficult to identify the precise basis of this complaint. The applicant perhaps cast most light on it by recalling a dictum of a

corrupt American politician of the nineteenth century to the effect that he who controls the nominating process controls the result.

In reality, this can only be a further allegation of bias. In the present context, the gravamen of the complaint is that, although the

Government chooses the second member of the panel of Visitors, the University, through its senate nominates the two persons from

whom that choice is to be made. But this comes nowehere near providing a basis of complaint as to the composition of the Visitors.

The University undoubtedly has both an interest and duty to see that only competent persons of integrity and independence can be

Visitors. The fact that one visitor is, in effect, nominated by the University does not call either the independence or integrity of the

Visitors into question.

Factual errors: mistake as to jurisdiction

The first point to make is that the applicant is not really complaining about alleged “factual errors” under this heading. He seeks

refuge in his status as a litigant in person. He has gone to enormous lengths to produce authority for the proposition that courts will

assist litigants in person and will relax the rigours of procedural rules in order to be satisfied that they have been fully able to present

their cases. This does not mean that a litigant in person is freed from the constraints inherent in the judicial process. In the case of

judicial review, an applicant is required to comply with two provisions. Firstly, he must promptly and, in any event, within, in a case

such as the present, six months of the act complained of. Secondly, he must produce a statement of the grounds on which he seeks

judicial review. To the extent that the Court relaxes the second requirement, it may also tend to infringe the first. In other words, if it

allows the statement of grounds expressly or implicitly to be expanded after the passing of the time limit, it may impinge on the rights

of the respondent to the application.

In the present case, the applicant seeks, at a very late stage, to advance a novel argument. He claims that the Visitors

misinterpreted their jurisdiction. He says that the original Charter of the University in the form of Letters Patent of Queen Elizabeth I

establishing Trinity as a College (3rd March 1592) provided that the Visitors: “shall break off and limit all contentions, actions and

controversies (which the Provost and a majority of the Fellows cannot settle) and that they shall punish all the graver faults not

amended by the Provost and Fellows.” He referred to a like provision in amending Letters Patent of King Charles I. The applicant

claims these Letters Patent as grounds of jurisdiction for the Visitors, independent of the Disciplinary Procedures set out in the

Statutes. He claims, in effect, that the exercise of this jurisdiction is not predicated on any decision of the Board. In effect, he can

invoke the jurisdiction of the Visitors directly.

I would reject this argument entirely for two principal very clear reasons. Firstly, this argument figures nowhere in the judicial review

statement on which the entire application is based. Nor is it mentioned in the grounding affidavit. It is true that the Letters Patent

are quoted several times in the course of the affidavit, but not as supporting an independent ground of judicial review. Secondly, as I

have shown earlier, the applicant repeatedly invoked the appeal jurisdiction of the Visitors as flowing from Section 6 of Chapter III of

the Statutes, which necessarily and expressly requires that there have been a decision of the Board from which an appeal could be

brought.

The applicant claimed that the Board had failed to make a decision, but that this failure should not defeat his appeal. Thus he based

his appeal on section 6 of Chapter III, claiming that the Board must be considered as having made a decision. The Visitors ruled on

the applicant’s appeal on the precise basis upon which he had brought it to them. They held that Section 6 required that there must

have been a “positive decision” of the Board, meaning an actual decision, not a deemed one.

In these circumstances, the applicant has not, either before the Visitors or in his statement grounding his application for judicial

review advanced the argument based on the jurisdiction of the Visitors, which he now wishes to advance. When he has got a ruling

from the Visitors based on his own explanation of his appeal, it would be quite wrong to allow him to attack that decision on the basis

of a claim to jurisdiction never advanced before the Visitors. It would be to allow judicial review of a decision which the Visitors never

made.

I would add that the Visitors were quite obviously correct in their ruling. The Board made no decision on Professor McGilp’s report.

There is no provision in the Statutes (such as may occasionally be provided in statutes) deeming a decision to have been made in

default after the lapse of a specified period. In the absence of an actual decision of the Board, the Visitors had no jurisdiction.

Moreover, the jurisdiction of the Visitors appointed pursuant to Chapter III and, consequently, the Visitors who made the impugned

decision depends on the terms of that Chapter, specifically section 6.

In my view, even on the most generous interpretation of the ground regarding “factual errors” contained in the statement grounding

judicial review, there was no material error in the decision of the Visitors.

For these reasons, the applicant has not established any arguable ground for the judicial review he seeks and I would dismiss his

application for leave.

Objection to a member of the Court

I should note one other matter. Prior to the commencement of the hearing, the Court drew the attention of the applicant to the fact

that one member of the Court, Macken J, had been a student at Trinity College and had also for a time in the past lectured there in

law. The Court asked the applicant whether he had any objection to the composition of the Court. After some hesitation, the

applicant said that he had not. During the course of the hearing, the applicant changed his mind and said that he objected to the

presence on the Court of Macken J. The Court, having risen to consider the objection, rejected it. It held that the fact that a member

of the Court was a graduate of and had formerly taught at the University, whose affairs were in issue, was not a ground establishing

objective bias. Judges are drawn from a broad cross-section of society. Their past associations doe not disqualify them from

performing their duty as judges.